Blog by an experienced Divorce and Family Law Attorney to educate people with Family Law and Divorce issues, answering questions and explaining complicated matters in a straightforward and understandable way. This blog is a Newsletter, designed for general information only. The information presented in this blog is not, is not intended to be, and shall not be construed to constitute legal advice, nor to create an attorney-client relationship.

Sunday, August 12, 2012

QUESTION: What happens to retirement benefits in legal separation? One person is retired and one still works with 5 years left.

MY RESPONSE: All community property is divided in a legal separation, the same way that community property is divided in a divorce: 50/50. Each party gets a 50% interest in the community portion of the other party's retirement benefits, usually by way of a QDRO (Qualified Domestic Relations Order). The community portion of a party's retirement benefits is that portion that was earned during the marriage to the date of separation. Portions of retirement benefits earned before the marriage or after separation are the separate property of the party earning those benefits. You would best retain, or at least consult, an experienced Family Law Attorney to ensure that the retirement plans are properly divided.

QUESTION: My ex and I recently got a court ordered custody schedule. In it, it says neither parent can prevent or restrict the other from speaking to our son. He is saying he will not allow me to speak to our son during the time he has him. I have told him I am willing to set up a pre-arranged time for me to speak with my son, and that I will not prevent him from speaking to our son, either. I have majority custody, and our son is about to be a year old. What can I do?

MY RESPONSE: Document your communications with your ex, by e-mail if possible, and save your e-mails to him and his e-mails to you, especially his refusals to allow you to talk to your son during your ex's time with your son, and try to call to speak to your son at least once a day during the time your ex has your son (but not to the point of annoyance) - and keep detailed records of your efforts, your ex's responses, and the results of your calls. Your options, once you have sufficient evidence, would be to file and prosecute a Contempt of Court against your ex, or to file and prosecute a Request for Order modifying child custody and/or visitation because of your ex's refusal to allow your communication with your son during your ex's visitation time.

QUESTION: My ex and I were divorced a couple of years ago. We filed without any attorneys and agreed that he would pay a small amount each month for child support and spousal support for a specific amount of time (with the spousal support ending early if I remarry). At the time the amount I agreed to was much less than I would have be awarded by California law but it was all I needed to make ends meet and i wanted to divorce amicably. Now he is trying to change the agreement to pay less. Can he do this? We agreed these would be the terms regardless of what happened in our lives from that point forward.

MY RESPONSE: It depends upon what the Judgment says. Unless the Judgment provides that your Spousal Support is non-modifiable, Spousal Support is modifiable based on a material changed of economic circumstances (although for you to seek an increase in Spousal Support, you would also need to prove that the Spousal Support initially awarded to you was insufficient to enable you to be supported in accordance with the marital standard of living). Child Support is always modifiable on a showing of changed economic circumstances. Your ex can seek a modification of Spousal and Child Support based on a material change of circumstances, such as loss of his job, reduction of salary, unpaid furlough days, an additional child to support, or your increased income.

QUESTION: My divorce agreement stipulated I had alimony payments from June 2009 to September of 2012. I started paying my alimony and child support in April 2009. since I am 3 months ahead, can I terminate my payments three months early?

MY RESPONSE: It is the divorce Judgment, not the divorce "agreement", which contains the orders that you need to obey. If the divorce Judgment requires you to pay Spousal Support until September, 2012, you should pay until September, 2012, even though you started paying Spousal Support earlier than the date set forth in the divorce agreement. It isn't worth the risks that you would face for you to stop paying earlier. The cost of defending against a contempt of court or other enforcement procedures, and the 10% interest rate on support arrearages comprise other reasons to comply with the divorce Judgment's orders. It is unlikely that the Court would order your ex to reimburse you for the three months of earlier payments, and if you file a Request for Order seeking such reimbursement, the Court could possibly require you to pay some or all of your ex's attorney's fees in connection with those proceedings.

QUESTION: We hired a family law lawyer to handle my daughter's divorce and child custody/support issues in June 2011. We agreed on a set hourly fee. He said he was seeking a Specialist Certificate in Family Law. Terrific. However, he just got it and now wants to charge us more for "his expertise and knowledge". On our latest bill he increased the hourly fee by $50 without notice to us. The facts are that he has not always represented her well even with standard skills. I paid him at the agreed upon rate, not the increased rate, which we did not agree to. We are a year into the case and it should have been settled LONG AGO. Can he bill current clients increased fees without discussing and agreeing on it first?

MY RESPONSE: Read the written retainer agreement that you have with your attorney. If it provides that he can increase his hourly rate, it likely provides that he must give you advance notice before billing hours at a higher rate. It is unfair and inappropriate for him to increase his rate on billings to you without first giving you notice that he is increasing his hourly rate, and the new rate, so that you can have an option to change attorneys if you don't want to pay the higher rate. If your attorney's written retainer agreement does not provide that he can increase his hourly rate, he is stuck with the rate that he set forth in his written retainer agreement.

QUESTION: I am an active duty Marine stationed in New Hampshire and California is not helping. Divorce paperwork was filed in May of 2011. I have been deployed twice and it is still not resolved.

MY RESPONSE: Your home state papers will work in another state only if the divorce is completed in the state in which it was filed. Venue cannot be transferred to another state during the pendency of a divorce. Once the divorce is granted, the divorce judgment will be effective in all states, i.e., all states will recognize that you are divorced.

QUESTION: My husband is disabled and receives disability. He gets $800 a month and $200 comes out for arrears. $100 comes out for medicare. He gets $500 a month. Child support is asking for my income info to decide what he must pay. Am I obligated to give my info?

MY RESPONSE: You are not obligated to provide that information to the Child Support Agency unless they subpoena your pay records, but you would be wise to provide that information if they request it. Your income cannot be used as a source of Child Support payments, but it should be considered for purposes of determining marginal income tax rates if you and your husband file joint income tax returns, in which case, marginal income tax rates will affect the amount of your husband's Child Support obligation. The more you earn, the higher the marginal income tax rate on the joint return, the less net income of your husband is available for Child Support, and the less his Child Support obligation should be.

QUESTION: We were married on Curacao legally under the Hague Convention (US not a party, I know now). Do I have to record the marriage in California? What advantages are there to recording it? We have our certificate and seals in our possession. I have no intention of changing my name and am already covered for health insurance.

MY RESPONSE: If you were legally married in Curacao, you are legally married in California. There is no procedure to record a foreign marriage in California. You would best make a number of duplicate photocopies of your marriage certificate and keep them in different places to ensure that they are never lost, in the event that you would ever need to prove that you are married.

The United States has not joined the Hague Convention on Celebration and Recognition of the Validity of Marriages because it has long observed the legal principle of comity (the recognition that one nation allows within its territory to the legislative, executive or judicial acts of another nation, having due regard both to the international duty and convenience and to the rights of its own citizens who are under the protection of its laws). Only three countries have ratified the convention, and only another three have signed it. Most other countries observe the principle of comity.

QUESTION: We are going through a divorce. I want to know if I have an advantage being a mother for our child's custody.

MY RESPONSE: Possibly, but not necessarily.

If you have been the children's primary parent since birth, you may receive primary physical custody of the children. If both parents have actively participated in the children's lives, the Court may award joint physical custody to both parties, either 50/50, or in other proportions.

It is best for the children and the parties if the parties work out a timeshare that will provide both parents frequent and continuing contact with the children.

If you can't work out an arrangement between yourselves, the Court will require you to mediate child custody, with a view to resolving the custodial timeshare issues without the need for Court intervention.

A Court Hearing should be the last resort to resolve child custody disputes, because the Judge's decision may not please either party, and the adversary nature of a Court Hearing could further damage the parties' relationship with each other and make it more difficult for the parties to co-parent the children.

Physical custody is the particular time-share that the parents have with the children. Sole physical custody is where the children live with one parent and visit the other parent. Primary physical custody is where the children live with one parent more time than they live with the other parent, who has secondary physical custody. Joint physical custody is where the children live with each parent approximately the same amount of time, although courts frequently consider a 75/35% or even 70/30% time-share split to be joint physical custody.

Legal custody relates to the power to make important decisions about the children's health, education and welfare. Courts have usually awarded joint legal custody to both parties unless the particular facts of the case drive the decision otherwise.

QUESTION: My husband cheated on me. He makes more money than I do. We have two daughters. How can I ensure he gives proper support?

MY RESPONSE: Retain an experienced Family Law Attorney to represent you in your divorce. Child Support is calculated in accordance with the California mandatory Child Support Guideline. Temporary Spousal Support (until Judgment is entered) is calculated in accordance with your county's Spousal Support Guideline, and Permanent Spousal Support (for post-divorce support, the duration of which depends on the length of the marriage, among other factors) is arrived at through consideration of the applicable Family Code Section 4320 factors, and is not calculated by a mathematical formula. The Court won't be concerned with the fact that your husband cheated on you unless he inappropriately involved your daughters in his cheating.